How does the First Amendment relate to prosecuting Assange?

We’ve already been covering the strange way in which it may or may not have been revealed that there’s a secret warrant out for Julian Assange. Personally, I find it implausible, based on the government’s responses thus far, that there isn’t a warrant. If this was just some sort of typo and there is no warrant, the requests being made of the prosecutors involved could be dismissed with a simple answer of, “we have no documents matching what you are requesting.”

But with the fact that the story is out there and the probability that a warrant exists, a debate has already begun over whether or not our government could actually go after Assange without running into First Amendment, Freedom of the Press issues. Attorney Doug Mataconis takes up this aspect of the tale at Outside the Beltway this week. In the minds of some of the more libertarian observers, there appear to be three main questions to settle.

Is Julian Assange personally responsible for the hacked DNC material, the Snowden material or the Chelsea (then Bradley) Manning documents being published or is the publication Wikileaks responsible?

Is Wikileaks “a publisher” in the conventional sense that the Washington Post is?

Even if Wikileaks is a conventional publisher, did Assange only “publish” the material or did he conspire in some fashion in the hacking/theft and transfer of classified information?

I’m going to focus on Doug’s discussion of the second and third points, a portion of which I’ll include here.

[T]he big First Amendment question that has always revolved around Wikileaks and Assange and their involvement in the making previously secret or even classified information available is whether they are considered a publisher or not. If they are then that would essentially mean that Wikileaks is essentially no different from The New York Times or The Washington Post and that their publication of classified information is, legally speaking, no different from what those papers did in the famous Pentagon Papers case. In that case, of course, the Nixon Administration was seeking to block the publication of secret documents related to the Vietnam War that dated back to the mid-1960s when U.S. involvement in the war was just beginning.

In its decision, the Court rejected the Administration’s efforts to prevent publication of the documents and reports about the contents of the documents on the ground that the First Amendment made prior restraints on speech unconstitutional and that the Times and Post could not be punished for publishing classified information that had been provided to it by third parties. If the situation is the same with regard to Wikileaks, then it would be hard to see how the organization or any of its principals could be prosecuted for doing something that the Supreme Court has determined is protected by the First Amendment.

Doug’s position seems to be that even if some material published by Wikileaks was highly classified, provided they are considered a publisher and didn’t conspire to break any laws in obtaining it, then the courts shouldn’t be able to touch them. He bases this on the Supreme Court case New York Times Co. v. United States surrounding The Pentagon Papers back in the day. But there are a couple of differences here, not to mention that the 2018 makeup of the Roberts court might take a different view on the matter than the Berger court of 1971.

First, as to the question of whether or not Assange/Wikileaks is “a publisher,” it seems almost irrelevant at this point. Today, anyone with a laptop and internet access can be “a publisher” in about ten minutes if they download some free blogging software or set up one of many social media accounts. Let’s just call Assange a publisher for these purposes.

If he was involved in the commission of a crime by helping or conspiring with some of the individuals I mentioned above to obtain sensitive information and concoct a way to transfer it to Wikileaks, then he’s almost certainly guilty of something.

The gray area is if the government determines that Assange simply received the material from one of these “sources” the same way a New York Times reporter might and then published it. Is he guilty of a crime? Personally, I think the court’s decision in New York Times Co. v. United States was a bit of a stretch to begin with, but the newspapers did have one point in their favor. The documents in question were certainly classified, but they were historical in nature. Rather than exposing current sources and methods, they discussed decisions and analysis from the past. Such a question will probably never be completely black and white, but it’s difficult to argue that, as per section 793 of the Espionage Act, that the release amounted to a “grave and irreparable danger” to the United States. (Which is what’s required to suppress the free press from publishing such material.)

The situation with Assange and Wikileaks strikes me as a bit different. With the Manning material in particular, we were in the middle of a war and he was dumping roughly 750,000 documents out into the public eye related to military activity in that war. Manning’s conviction and the testimony of multiple senior officials in the military that we might never even know the full extent of the damage that was caused would likely be enough to meet that standard.

If the hacking of the DNC emails turns out to be something that Assange didn’t simply receive, but was party to, whether with the Russians or someone else, it’s possible he was conspiring to commit a crime there as well. Whichever way you flip this pancake, I don’t know that it’s a done deal and we can simply assume that the First Amendment would protect Assange for publishing classified material. As with the rest of the rights in the First Amendment, they all have limits.